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M. Kanakavel Pillai by Power Agent M. Sellaiyah Pillai Vs. Drugs and Chemicals, Kumbakonom by Its Managing Director, T. Ramani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1980)2MLJ392
AppellantM. Kanakavel Pillai by Power Agent M. Sellaiyah Pillai
RespondentDrugs and Chemicals, Kumbakonom by Its Managing Director, T. Ramani
Cases ReferredK. Krishnan v. Munuswamy
Excerpt:
- .....of the petitioner. after the purchase by the petitioner, the respondent and others who have been carrying on business in the sale of drugs and medicines had also attorned. the petitioner claimed that he requires the building for his own use and occupation and to start a business and only for this purpose, according to him, he had invested huge amounts in the purchase of the building. the petitioner claimed that he has no other building of his own fit for conducting the business and further stated that he was having ready cash for getting the stock and machineries also for his business at kumbakonam. the petitioner further claimed that the building is an old one and that he wants to demolish and reconstruct the same. an undertaking to commence the demolition work and also to complete.....
Judgment:

V. Ratnam, J.

1. The landlord is the petitioner. An application was filed by him under Section 10(3)(a)(iii) and Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, as amended by Act XXIII of 1973, hereinafter called the Act, praying for an order of eviction against the respondent and others. The property in question bearing door No. 33 in T.S.R. Big Street, Kumbakonam town, was purchased by the petitioner under two said deeds dated 5th January, 1975 and 15th January, 1975. Even at the time when the property was purchased, the respondent and others were in occupation as tenants under a tenancy agreement with the vendors of the petitioner. After the purchase by the petitioner, the respondent and others who have been carrying on business in the sale of drugs and medicines had also attorned. The petitioner claimed that he requires the building for his own use and occupation and to start a business and only for this purpose, according to him, he had invested huge amounts in the purchase of the building. The petitioner claimed that he has no other building of his own fit for conducting the business and further stated that he was having ready cash for getting the stock and machineries also for his business at Kumbakonam. The petitioner further claimed that the building is an old one and that he wants to demolish and reconstruct the same. An undertaking to commence the demolition work and also to complete the construction within the time prescribed in the Act was also given by the petitioner. A notice was also issued on 11th June, 1975, by the petitioner to the respondent and others requesting them to vacate the property and surrender possession which was not acceded to by the respondent. Under these circumstances, the petitioner filed the application for eviction.

2. The first respondent in his counter stated that he had nothing to do with the drugs and chemicals and that he has been unnecessarily impleaded in the petition. The second respondent did not file any counter. The third respondent who is the only contesting respondent now, contested the application on the ground that the petitioner is in Kulalumpur and the requirement of the premises by the petitioner is not bona fide. A further plea was also taken that a mere intention on the part of the petitioner to start the business cannot be a ground for seeking an order of eviction against the respondent. The requirement of the premises in question for demolition and reconstruction was denied, as according to the respondent, the building is in a very good condition and it requires no demolition or reconstruction. An objection was also raised with reference to the maintainability of the application for eviction at the instance of the power of attorney agent of the petitioner. It was also contended that in the absence of a valid notice to quit, the application for eviction is not maintainable.

3. The learned Rent Controller, District Munsif, Kumbakonam, on a consideration of the oral and documentary evidence concluded that the petitioner required the building bona fide for his own use and occupation and that he wanted to conduct his own business in the property in the occupation of the respondent. It was also further found that no notice to quit was necessary in respect of proceedings initiated under the provisions of the Act. The objection of the respondent as regards the maintainability of the application was also negatived. The requirement of the petitioner for the purpose of demolition and reconstruction in order to start a new business in the property in question was also held to be made out. On the above findings, the learned Rent Controller directed eviction of the respondent from the premises in question granting two months time to vacate the same. Aggrieved by that, the respondent herein preferred an appeal in C.M.A. No. 32 of 1977 before the Appellate Authority. Sub-Court, Kumbakonam. The Appellate Authority held that the petitioner does not require the petition-premises for his own occupation and that the requirement is not bona fide as well. The Appellate Authority concurred with the con-elusions of the learned Rent Controller that no notice of termination is necessary and that the petition by the power of attorney agent of the petitioner is maintainable. Considering the nature of the alterations proposed to be effected by the petitioner in the premises in question, the Appellate Authority concluded basing itself on the plan that what was contemplated by the petitioner was a mere change of roofing and that would not fall within Section 14(1) (b) of the Act and therefore, held that the requirement of the premises by the petitioner for demolition and reconstruction is not bona fide. In the result, the Appellate Authority, differing from the conclusions of the learned Rent Controller, allowed the appeal and dismissed the application for eviction filed by the petitioner.

4. In this civil revision petition, the learned Counsel for the petitioner first contended that the Appellate Authority has misdirected itself in proceeding to consider the bona fide requirement of the petitioner for the purpose of his business stating that the attempt is to shift the existing business in plastics at Madras under the name and style of Kohinoor Plastics to Kumbakonam. It is also further pointed out that this is not the case of the petitioner in his application for eviction. The learned Counsel for the respondent, on the other hand, contends that the petitioner has not satisfactorily established either the actual conduct of the business in Kumbakonam or the taking of the necessary steps therefor and the making of the arrangements for starting a business in the plastic goods at Kumbakonam and therefore, even though it may not be a case of shifting of the business from Madras to Kumbakonam, yet, the requirement of the petitioner under Section 10(3)(a) (iii) of the Act is not made out. In paragraph 5 of the application for eviction, the petitioner has stated thus:

The petitioner wants to conduct his own business and has made arrangements for starting his business in plastic industries. Already, he is conducting such a business in Madras City. He is having ready cash for getting stock and machineries also for his trade at Kumbakonam. He does not want to let out this building on lease. The petitioner therefore requires this building bona fide for his own use and occupation and the respondent has to be evicted from this building.

From a reading of the allegations in para-graph 5 referred to above, it is obvious that the petitioner is not desirous of shifting any business that is being already conducted in Madras to Kurnbakonam; but that he would like to start a similar business at Kumbakonam. In refuting this claim of the petitioner, the respondent has stated in paragraph 9 of his counter thus:

The petitioner is in Kulalumpur in Malaysia and the alleged requirement is nothing but false and falls short of bona fides. His conducting a business at Madras City, cannot be a ground for ordering eviction of a premises Kumbakonam. He has no business of his own in the locality. The mere intention in the mind of the petitioner to start a business, cannot be ground for ordering eviction.

Again, in paragraph 10 of this counter, the respondent has reiterated that it is false to state that the petitioner has made arrangements to start a business. It is in this background that the question whether the petitioner requires the premises for the purpose of a business which he is 'carrying on' at Kumbakonam to be considered. In the course of the evidence, the power agent of the petitioner examined as P.W. 1 stated that the petitioner purchased the property in question for his own use and occupation and that he wants to have a plastic shop therein. It is also his further evidence that though the petitioner does not have such a shop in Kumbakonam, yet, he is a partner in Kohinoor Plastics and that that business is to be conducted in the premises in question. It is also his further admission that the petitioner is away in Malaysia carrying on business there. The evidence of P.W. 1 indicates that the petitioner wants to transfer the business from Madras to Kumbakonam and carry on that business in the premises in question. But as has been pointed out already, that is not the basis on which the application for eviction has been filed. The further question that, therefore, arises is whether the petitioner has established that sufficient arrangements have been made for the purpose of carrying on business in plastics in Kumbakonam and therefore, the petitioner can claim to carry on business and seek an order for eviction against the respondents on that footing in respect of the premises in question. It is in this connection that the learned Counsel for the petitioner relied upon the decision in S.N.K. Ramaswamy Pilled v. Karmega Thevar (1964) 2 M.L.J. 89, wherein it is pointed out that it is not necessary for the purpose of 'carrying on business' within the meaning of Section 10(3)(a) (iii) of the Act that the entire activity of a business should exist, but that the section would cover the case where the authorities come to the conclusion that the demand for occupation is a bona fide one and that the land-lord has already commenced some activity in connection with the starting of the business and that there is no reason why a landlord, having the capital ready and the intention as well to do business cannot be said to have commenced his business, though the activity relating to it has to await the securing of accommodation. In addition, reliance has also been placed by the learned Counsel for the petitioner on the decision in R. M. Solai Nadar v. A.T.A.V. Guruswami Nadar and Co., represented by A. V. Guruswami Nadar : (1969)1MLJ629 , wherein Ramaprasada Rao, J., as he then was, after an exhaustive analysis of the case law on the subject, deduced the general principle applicable to such cases as follows:

The general principle noticeable in the majority of cases appears to be that bona fide preparation to do business at place where the tenant is trading coupled with an honest and genuine need for the same would entitle a landlord for an order under the section.

In interpreting the scope of the expression 'carrying on business' employed in Section 10(3)(a) (iii) of the Act, a Division Bench of this Court in P. N. Raju Chettiar v. The State of Tamil Nadu represented by the Secretary, Home Department (Accommodation Controller) and others (1970) 1 M.L.J. 249 : 82 L.W. 695 : A.I.R. 1970 Mad. 306, disapproving a literal construction! of the words 'carrying- on business' as meaning actually carrying on business, held thus:

We think so because 'carrying on a business' may consist of a series of steps, and, even if one step is proved, we do not see why the requirement is not satisfied. But, if there is no step at all whatever and the matter is only in the stage of intention, it is difficult to bring such a case within the phraseology of the statute.

Ismail, J., as he then was, in Man Ammal v. Kandaswamy (1977) T.L.N.J. 499, reviewing the cases on the subject held that the expression 'a business which he is carrying on ' cannot be interpreted in the same manner in all cases irrespective of the nature of the business, but that the preparation necessary to constitute commencement of a business will necessarily depend upon the nature of the particular business proposed to be carried on. In the present case, the requirement of the petitioner is stated to be for the conduct of the business in plastic industries. The nature of this business is such that some arrangements have to be made for the commencement of the business and the range of the activities necessary for the commencement of such business is not so simple or easy as starting and running a petty shop. Though the petitioner has stated in paragraph 5 of his application for eviction his business in plastic industries, yet, a perusal of his evidence on this aspect of the case reveals a vacuum of facts, in relation to the taking of necessary steps for the commencement of the plastic business at Kumbakonam. It is common knowledge that for the purpose of carrying on a plastic industry, licence would be necessary and some machineries would also be essential. It is not even stated by the petitioner that he had taken some step towards securing either the licence for the purpose of commencement of the plastic industry or to secure the necessary machinery therefor. Having regard to the nature of the industry proposed to be started by the petitioner at Kumbakonam, it must be held that the matter of carrying on such business is only in the stage of intention, as no further step whatever has been taken by the petitioner in this regard. The learned Counsel for the respondent lapsed into a literal construction of the section and stated that before the petitioner can seek an order for eviction, it must be established that he is actually carrying on business at Kumbakonam and that for that purpose, the building is required . It may be pointed out that in P. N. Raju Chettiar v. The State of Tamil Nadu, represented by the Secretary, Home Department (Accommodation Controller), and others (1970) 1 M.L.J. 249 : 82 L.W. 695, precisely this literal construction put upon the words 'carrying on business' by Basheer Ahmed Sayeed, J., in C.R.P. No. 137 of 1955. was not approved and therefore, this contention of the learned Counsel for the respondent has no substance. From the fore going, it is clear that apart from merely entertaining an intention of carrying on the business in plastics at Kumbakonam, the petitioner has not taken any other step in furtherance of such carrying on of the business and therefore, the petitioner cannot claim to come within the scope of the expression 'carrying on business' in Section 10(3)(a) (iii) of the Act and therefore, entitled to recover possession of the building from the respondent herein. The Appellate Authority was therefore right in holding that the petitioner cannot claim the premises in question from the respondent under Section 10(3)(a) (iii) of the Act.

5. That leaves for consideration, Section 14(1) (b) of the Act under which provision also the petitioner sought the order of eviction against the respondent. It is not in dispute that the building is an old one. Section 14(1) (a) and (b) of the Act runs as follows:

14. Recovery of possession by landlord for repairs or for reconstruction--(1) Notwithstanding anything contained in this Act, but subject to the provisions of Sections 1.2 and 13, on an application made by a landlord, the Controller shall, if he is satisfied--

(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or

(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.

Exhibit A-10 is the plan which has been submitted and approved by the Kumbakonam Municipality with reference to the proposed changes to be effected in the building. A perusal of Exhibit A-10 indicates that the middle portion of the building, where Madras terrace roof is in existence, is proposed to be left untouched. With reference to the front and the rear portions, the plan indicates that the proposal is to convert the existing thatched and tiled roof into R.C.C. roofing. The learned Counsel for the petitioner contends that the front and the rear portions of the building are sought to be interfered with materially and in many respects so that when the building is reconstructed in accordance with the plan the result would be that there is an alteration in the cubical content of the enclosed space and the resultant variation in the space content of the building would be sufficient to bring the entire process within demolition as well as reconstruction. Strong reliance was placed in this connection on a judgment of Ramaprasada Rao, C.J., in A. M. Batcha and another v. T. M. P.C. Ramachandran ( 979) T.L.N.J. 73. It must be stated that there is absolutely no evidence on behalf of the petitioner to establish that there is a likelihood of a variation in the cubical content of the space and in the absence of any such evidence, it is not open to the petitioner to say that the principle in the decision referred to above can be called in aid in support of his claim under Section 14(1) (b) of the Act. In addition, the scope of Section 14(1) (b) of the Act came up for consideration in K. Krishnan v. Munuswamy (1978) 2 M.L.J. 50 : I.L.R. (1978) Mad 193 : 9 L.W. 454 : A.I.R 979 Mad. 50. A Division Bench of this Court, considering the question whether the change of roof would be within the scope of Section 14(1) (b) of the Act held thus:

There are various types of roofs, and it may be that it may become necessary to change the roof. Certain people for coolness might prefer a thatched roof instead of a tiled roof. Others may prefer a roof with asbestos sheets because it is cheap, and a third person may like to have a concrete cement roof for greater stability or because that is more commonly used. A change from one type to another may perhaps be a change of a substantial nature so far as the roof is concerned. But, when one talks of demolition of a building as contemplated in Section 14(1) (b), it is difficult to assume that the change of a roof will amount to demolition of the building.

At page 457, the Bench observed thus:

The expression 'erecting a new building on the same site' adds to the effect of the word 'demolition' because the very words 'new building' would indicate that something different from what was in existence on the property or on the site to be more accurate, must be brought into being after demolition. Demolition must therefore obliterate substantially the old building and the erecting must bring into being a new building.

Considering in the, light of the above interpretation of Section 14(1) (b) of the Act, the changes to be effected to the building by the petitioner in the instant case, the proposed changes would not amount to demolition and reconstruction. The petitioner, therefore, is not entitled to an order for eviction against the respondent even on this ground and the finding of the Appellate Authority in this regard also has to be upheld. The result is, the civil revision petition fails and is dismissed with costs.


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